Bellman v Northampton Recruitment Ltd is a timely reminder to employers that Christmas parties come with a degree of risk. The case focused on a managing director who punched a colleague following a work Christmas party.
The Court was asked to decide whether his employer was responsible for his conduct.
Can an employer be liable for the conduct of its employees?
Although the employer in Bellman escaped liability, the answer to this question is ‘yes’. The legal principle of ‘vicarious liability’ makes an employer potentially liable for its employees’ actions. In general, an employer is vicariously liable for the conduct of its employees “in the course of their employment”.
In the context of a work Christmas party, the most common forms of unacceptable conduct are likely to be aggressive behaviour (often alcohol-induced) and sexual harassment. An employer can be found liable for both of these. This could result in large compensation awards, together with the associated reputational damage.
Is there potential criminal law angle?
Yes – in addition to the risk of claims against employers, inappropriate behaviour could lead to individuals facing criminal prosecution.
The Court in Bellman was clear that if individuals engage in criminal conduct, they ought to be prosecuted individually. That would mean a criminal court case, potentially resulting in imprisonment.
The Court criticised the decision not to prosecute the managing director, noting that “a flawed decision was taken not to proceed with the criminal charges”. The message is simple: if you engage in this type of conduct, you personally risk criminal prosecution.
How to address the risks
We recommend that employers take the following steps:
• When arranging the party, try to minimise the risk of trouble. Ensure there are soft drinks available (so nobody is ‘forced’ to drink alcohol), and check that any organised entertainment is not potentially inflammatory.
• Before the event, remind employees that they are expected to conduct themselves responsibly. An employer can defend a claim that it is liable for a discriminatory act if it can prove that it took all reasonable steps to prevent the act from happening.
• Management should be prepared to intervene if they become aware of harassment or inappropriate behaviour.
• If an employee makes a complaint, treat it seriously. A failure to deal with a complaint promptly could be a breach of the implied duty of trust and confidence (leading to the employee claiming constructive unfair dismissal).
• On an individual level, do not engage in conduct that may constitute a criminal offence. That includes any behaviour that puts others in a state of fear and alarm. The Courts have decided that shouting or using offensive language may, on its own, be a criminal offence. Punches need not be thrown for a prosecution.
The Court in Bellman described the work Christmas party as an occasion “no doubt dreaded by some and an annual highlight for others”.
Whatever side of the divide you fall on, it is worth taking steps to minimise the risk of an ‘after-party’ in a Court or Employment Tribunal.